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Hester v. Hubert Vester Ford, Inc.

Court of Appeals of North Carolina

January 6, 2015

JOANN HESTER, Individually and as Personal Representative of the Estate of Leland Hester, Plaintiff-Appellant,
HUBERT VESTER FORD, INC., and LARRY McPHAIL, Defendants-Appellants

Heard in the Court of Appeals: August 26, 2014.

Page 130

Appeal by Plaintiff from order and judgment filed 11 September 2013, nunc pro tunc 26 August 2013, by Judge Douglas B. Sasser in Superior Court, Bladen County, No. 12 CVS 402.

Christopher W. Livingston for Plaintiff-Appellant.

Womble & Campbell, P.A., by H. Goldston Womble, Jr.; and C. Michael Thompson, for Defendants-Appellees.

McGEE, Chief Judge. Judges BRYANT and STROUD concur.


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McGEE, Chief Judge.

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Plaintiff filed claims against Hubert Vester Ford, Inc. (" Vester Ford" ) and Larry McPhail (" Mr. McPhail" ) (" Defendants" ), for unfair and deceptive trade practices, fraud, and common law extortion arising out of a vehicle purchase. Plaintiff alleged Defendants contracted to sell Plaintiff a Jeep vehicle under certain terms but then compelled Plaintiff to sign a second, less-favorable contract under the threat of repossession. We find that most, but not all, of Plaintiff's claims were properly resolved through summary judgment.

I. Standard of Review

This Court reviews a trial court's order allowing summary judgment de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006). This review is limited to determining whether " there is no genuine issue as to any material fact" and whether the moving parties were entitled to judgment in their favor as a matter of law. See Blades v. City of Raleigh, 280 N.C. 531, 544, 187 S.E.2d 35, 43 (1972). It generally is sufficient for a nonmoving party to survive summary judgment where the party can " produce a forecast of evidence demonstrating that [the party] will be able to make out at least a prima facie case at trial." Creech v. Melnik, 347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998) (citation and internal quotations omitted). However,

in passing upon a motion for summary judgment, all affidavits, depositions, answers to interrogatories and other material filed in support or opposition to the motion must be viewed in the light most favorable to the party opposing the motion, and such party is entitled to the benefit of all inferences in [the party's] favor which may be reasonably drawn from such material.

Whitley v. Cubberly, 24 N.C.App. 204, 206-07, 210 S.E.2d 289, 291 (1974). " The slightest doubt as to the facts entitles the non-moving party to a trial." Ballenger v. Crowell, 38 N.C.App. 50, 53, 247 S.E.2d 287, 290 (1978).

II. Background

Because this is an appeal by Plaintiff from a grant of summary judgment against her, we take the facts in the light most favorable for Plaintiff. Plaintiff's son, Ryan Hester (" Ryan" ), became interested in purchasing a 2007 Jeep Wrangler (" the Jeep" ) from Vester Ford sometime near Labor Day in 2009. Ryan had a preliminary phone conversation with Melvin Scott (" Mr. Scott" ), a salesperson for Vester Ford. During that phone call, Ryan obtained some type of " pre-approval," but Mr. Scott also notified Ryan that he would need a co-signer in order to purchase the Jeep. Plaintiff, Ryan's mother, agreed to be that co-signer.

Plaintiff and Ryan traveled to Vester Ford the following evening and test-drove the Jeep. While at Vester Ford, they interacted with Mr. Scott and Mr. McPhail, and both stayed late to accommodate Plaintiff's and Ryan's schedules. Plaintiff and Ryan presented Defendants with bank and pay documents that showed their respective incomes, which were modest. However, Defendants allegedly agreed to sell the Jeep to Plaintiff and Ryan for a base price of about $22,000.00, with a trade-in credit of $1,000.00 for Plaintiff's Mercury Grand Marquis (" the Grand Marquis" ), and monthly payments in the $300.00 to $350.00 range for between sixty (60) and seventy-two (72) months. Plaintiff and Ryan testified during their depositions that: (1) all parties purportedly signed a purchase contract containing these terms (the " original" contract); (2) the Grand Marquis' license plate was transferred to the Jeep at signing; and (3) Plaintiff and Ryan left with the Jeep that evening.

Plaintiff has been unable to produce a copy of the " original" contract, and Defendants deny its existence. Defendants contend they sold the Jeep to Plaintiff on 30 September 2009. However, Plaintiff presented an affidavit from a neighborhood Labor Day party attendee, averring that he saw Ryan in possession of the Jeep several weeks before 30 September 2009. Vester Ford also submitted

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a credit application on Plaintiff's behalf to Marine Federal Credit Union to finance the purchase of the Jeep (" Marine Credit application" ); the Marine Credit application was dated 24 September 2009, six days before Defendants state they sold Plaintiff the Jeep. Notably, this credit application greatly exaggerated Plaintiff's finances. Finally, the Jeep was transferred to Plaintiff's insurance on 28 September 2009, two days before Defendants state they sold Plaintiff the Jeep.[1]

Plaintiff alleged that Mr. Scott contacted her in early October 2009 and stated that: (1) the financing for Plaintiff's recent Jeep purchase had fallen through; (2) Plaintiff needed to sign a new purchase contract for the Jeep, with new financing; and (3) if Plaintiff did not sign the new contract, the Jeep would be repossessed. Soon thereafter, Mr. Scott arrived at Plaintiff's residence and presented Plaintiff and her husband with the new contract, which was backdated to 30 September 2009 (the " 30 September" contract). Mr. Scott allegedly informed Plaintiff and her husband that the terms in the 30 September contract were the same as those in the " original" contract. Plaintiff alleged that Mr. Scott then physically covered the top half of the 30 September contract when he presented it to Plaintiff and her husband, obscuring their view of the terms therein. Neither Plaintiff nor her husband asked to read the terms of the 30 September contract before signing it.[2]

The 30 September contract required that Plaintiff make monthly payments of $614.83, with an interest rate of 14.69 percent, for sixty (60) months -- almost doubling the monthly payments that Plaintiff contends were required under the " original" contract. The terms in the 30 September contract were based on a line of credit that Vester Ford obtained on Plaintiff's behalf from Ford Motor Credit Company after financing for the " original" contract reportedly fell through. The credit application submitted to Ford Motor Credit Company by Vester Ford inflated Plaintiff's financial data even more than the Marine Credit application.

Ryan remained in possession of the Jeep approximately nine months after Plaintiff signed the 30 September contract, although he only made a couple of monthly payments thereon. The Jeep was repossessed in July 2010, was sold, and a deficiency judgment was entered against Plaintiff for the remainder of the amount owed under the 30 September contract. However, that deficiency judgment was set aside by a consent order, and Plaintiff currently owes nothing on the Jeep.

Plaintiff filed a complaint against Defendants for unfair and deceptive trade practices (" UDTP" ), fraud, and common law extortion. Plaintiff and Defendants then moved for summary judgment against each other. By order filed 11 September 2013, the trial court granted Defendants' motion for ...

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